BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20/08/2010
CORAM
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
C.R.P.(NPD)No.2608 of 2001
1.P.Jagadeesan ... Revision Petitioners/
2.P.Senthilkumar Appellants/Petitioners
vs.
K.Balasubramanian ... Respondent/Respondent/
Respondent
This civil revision petition has been filed under section 25 of the
Tamil Nadu Buildings (Lease and Rent Control) Act, 1960 as amended by Act 23 of
1973 and by Act 1 of 1980), to set aside the fair and decretal order in
R.C.A.No.7 of 1997 on the file of the Rent Control Appellate Tribunal, Trichy
and dismiss the RCOP No.304 of 1986, on the file of the Rent Controller, Trichy.
!For Petitioners ... Mr.S.Anand Chandrasekar
for Sarvabhauman Associates
^For Respondents ... Mr.Ramesh
:ORDER
Heard both sides.
2.The tenants are the revision petitioners. The respondent/landlord filed
RCOP No.304 of 1986, on the file of the Principal Rent Controller, Trichy, for
eviction on the ground of wilful default in the payment of rent and for
demolition and reconstruction.
3.The learned Rent Controller allowed the application on the ground that
the tenants committed wilful default in the payment of rent and denied the title
of the landlord and rejected the eviction petition on the ground of demolition
and reconstruction. The tenants aggrieved by the same, filed appeal in RCA.No.7
of 1997, on the file of the Rent Control Appellate Authority, Trichy and the
learned Rent Control Appellate Authority confirmed the finding of the learned
Rent Controller and dismissed the appeal and aggrieved by the same, this civil
revision petition is filed by the tenants.
4.The case of the landlord is that the tenants executed an agreement of
lease, dated 30.04.1985 agreed to pay Rs.1,500/- per month as rent and the
period of lease is 11 months and they have committed wilful default in the
payment of rent from August 1985 and the landlord requires the building for
demolition and reconstruction.
5.The tenants filed the counter stating that the schedule property
mentioned in the petition does not exist and they have not executed any
agreement of lease in favour of the landlord and they purchased the property
from Narayanaswamy Konar and before his purchase, he was a tenant under him and
the vacant site was leased out to him and thereafter, the tenant has put up
construction and paid electricity bills in his name and the landlord/respondent
subsequently purchased some portions of property from the said Narayanaswamy
Konar and therefore, the revision petitioner is in possession of the property in
his own right and he is not a tenant under the landlord/respondent and hence,
there is no question of payment of rent much less wilful default and there is no
relation of landlord and tenant between the parties.
6.Before the Rent Controller, the landlord examined himself and one of the
tenants examined himself and on the side of the landlord, three documents were
marked and on the side of the tenants, 3 documents were marked and an Advocate
Commissioner was appointed to inspect the suit property and he has also filed a
report as well as a rough plan and those documents were marked as Exs.C1 to C2.
7.The learned counsel appearing for the revision petitioners/tenants,
Mr.S.Anand Chandrasekaran, vehemently contended that in this case, admittedly
there is a dispute with regard to the identity of the property and the tenants
purchased property of an extent of 60′ x 13′ from the original owner,
Narayanaswamy Konar and he is in possession of the same by putting up
construction and in the sale deed in favour of the landlord, it is also
mentioned that the property sold to the landlord is west of the property
belonging to the tenants and hence, there is no relationship of tenant and
landlord between the parties.
8.He further submitted that in the petition filed by the landlord, he has
not mentioned anything about the alleged agreement of lease executed by the
tenants and only in evidence, the lease deed was brought into light and the
tenants disputed the signature and the execution of the lease deed in favour of
the landlord and the Courts below, without appreciating all these points,
allowed the application filed by the landlord and when the tenant has raised the
bona-fide dispute about the title of the landlord over the property, the Courts
below ought to have directed the landlord to file a suit for declaration before
the civil Court and erred in ordering eviction and in support of that, relied
upon the judgment reported in 1994(2) MLJ, 447 in the case of E.Venkata Naicker
Trust, a Private Trust represented by its Manager, E.V.K.Selvaraj vs. Muthusamy
Chettiar and (2002)3 SCC 98, in the case of J.J.Lal Pvt. Ltd and others vs.
M.R.Murali and another, in support of his contention.
9.On the other hand, Mr.Ramesh, the learned counsel appearing for the
respondent submitted that there is no dispute regarding the identity of the
property and both the Courts below have elaborately discussed about the identity
of the property and have rightly came to the conclusion that the property
purchased by the landlord is in Survey No.394 and the property purchased by the
tenant is in Survey No.349 and even though, the lease deed was not mentioned in
the petition, the same was mentioned in the notice sent by the landlord prior to
the filing of the petition and therefore, it cannot be stated that it was
created for the purpose of the petition and even though the tenant has denied
the signature, no attempt was made by the tenant to prove the same by referring
the document to handwriting expert and the Courts below after comparing the
signature found in the vakalat and other documents, rightly came to the
conclusion that the signature found in the lease agreement was that of the
tenants and ordered eviction. It is, therefore, submitted that there is no need
to interfere with the order of the Courts below.
10.I have considered the rival contention of both the counsels.
11.In this case, admittedly the tenant has raised the points that the
property described in the petition does not exist. In the counter, it is
especially stated that the property described in the petition does not exist. He
further pleaded that the revision petitioner is the owner of the petition
mentioned property and the landlord has no title over the same and there is no
relationship of the landlord and the tenant between the parties.
12.It is admitted by the landlord in evidence that his property is lying
west of the tenants property and the tenant’s property was also mentioned as
belonging to Subbiah Patarai, in his sale deed and there is a vacant site
between Subbiah Patarai and the property purchased by him. The specific case of
the respondent is that he sold 500 sq.feet of property and in the remaining
extent, the petition mentioned property is situate and that was leased out to
the tenants. In the notice Ex.P3 dated 15.04.1986, the schedule of property was
mentioned as having an extent of 40 feet north-south and east-west on the
northern side 3 feet 10 inches and on the south side 12 feet and 6 inches and
bounded on the west of the property belonging to the tenants (o.v!;.394 y;
jA;fSila nlj;jpw;Fk; fpHf;F) and east of the property purchased by the landlord
from Narayanasamy Konar and bounded by North and South by east-west pathway. It
is specifically stated in the petition that the property is situate in
T.S.No.394 and bounded on the east and west by the petitioner’s property and
north and south by east-west pathway.
13.It is seen from the tenancy agreement Ex.P2 that the land, which was
leased out to tenants was situate within the following boundaries:-“Western
boundary is the property of the tenant(o.v!;.394y; jA;fSila nlj;jpw;Fk;
fpHf;F)situate in Survey No.394, eastern boundary is the property belonging to
the landlord purchased by him from Narayanasamy Konar and North-south is bounded
by East-west pathway. The same boundary is mentioned in the notice. But in the
petition, it is stated that the property is situate in T.S.No.394 and bounded on
the east and west by the petitioners’ property and north and south by east-west
pathway. It is also admitted that in the sale deed of the revision petitioner,
the eastern boundary is described as property belonging to the tenant, which is
mentioned as Subbiah Patarai. It is further admitted by the landlord that he
sold a portion of the property purchased by him from Narayanasamy Konar and out
of the remaining extent, a portion was let-out to the tenant. The Courts below
taking note of the discrepancy in survey number mentioned in the tenants’ sale
deed came to the conclusion that the tenants have purchased the property in
survey No.349 whereas the landlord has purchased the property in Survey No.394
and therefore, the tenant cannot claim any right of ownership over the property
purchased by the landlord and no attempt was made by the tenant to prove that
the property in dispute is his property and therefore, the tenant has committed
default in the payment of rent and wilfully denied the title of the landlord and
committed default in the payment of rent and therefore, eviction was ordered,
which according to me is erroneous. As rightly pointed by the learned counsel
appearing for the revision petitioners, in the notice sent by the landlord,
Ex.P3, it is stated that the tenanted property is situate on the western side
and it is in Survey No.394. The same recitals regarding the description of the
western boundary was also mentioned in the lease deed. Therefore, from these
two documents, Exs.P2 and P3, it is made clear that the property purchased by
the tenant is also in survey No.394 and it is not in survey No.349 as found by
the Courts below.
14.In the notice as well as in the agreement of lease, western boundary is
the property belonging to the tenant, which is in Survey No.394. In the sale
deed, Ex.P1 it is clearly stated that the western boundary is the property
belonging to Subbiah patarai, which is admittedly the property belonging to the
tenant. Therefore, from Exs.P1, P2 and P3, it is made clear that the western
boundary of the property alleged to have been leased out to the tenant is the
tenants’ property. But in the petition, it is stated that the western and
eastern side are the properties of the landlord.
15.As stated supra, in Exs.P2 and P3, it has been specifically stated that
the tenants’ property is situate in Survey No.394. Therefore, from the exhibits
filed in support of this petition and the schedule property as described in the
petition, there are discrepancies with regard to the western boundary. Though,
the landlord has mentioned about the agreement of lease deed, dated 30.04.1985
in the notice, it was not mentioned in the petition and it was also not included
along with the documents filed along with the plaint and only during evidence,
the unregistered and unstamped documents were produced. As per Ex.P3, the
period of lease is for 11 months and therefore, it does not require
registration. Nevertheless, it requires stamp duty and under section 35 of the
Indian Stamp Act, without proper stamp duty, the Court should not have been
admitted the documents. It is further admitted by the tenant that the suit
property has not been identified by the Commissioner in the plan, and the
landlord has not filed any objection to the Commissioner report.
16.In the Commissioner’s plan, the suit property was described as ‘ABCD’
and it does not tally with the measurement given in the petition and no
explanation was given by the landlord in respect of area described by the
Commissioner as the suit property. Both the Courts below proceeded on the
presumption that the tenant has executed the lease deed and in the sale deed of
the tenant the survey number is mentioned as 349 and the suit property is in
survey No.394 and therefore, the tenant has wilfully denied the title and
committed default in the payment of rent. According to me, the findings of the
Courts below regarding the identity of the property is not correct. As stated
supra, there is a discrepancy regarding western boundary and even assuming that
the tenant has executed the lease deed as evidenced by Ex.P2, the suit property
mentioned in the petition is not the same property as described in the lease
deed and therefore, the lease deed cannot be taken advantage of by the landlord
to come to the conclusion that the tenant has admitted the tenancy.
17.Both the Courts below have held that there is a difference in the
survey number in the tenant’s sale deed and the tenant has purchased the land in
survey No.349 and the landlord purchased the land in survey No.394 and
therefore, the tenant does not have any property in that area without taking
into consideration the description of the property mentioned in Ex.P2 and P3
wherein it has been stated that the western property is the property belong to
the tenant which is in survey No.394. Further, in the sale deed it is mentioned
that the western property belonged to Subaiya Patarai, which belongs to the
revision petitioner. Considering all these aspects, I am of the opinion that the
landlord has not proved that he is the owner of the property mentioned in the
petition and the dispute raised by the tenant is a bona-fide one and when the
tenant has disputed the title of the landlord over the property and it is bona-
fide, the Courts below ought to have referred the matter to the civil Court and
should not have ordered eviction.
18.As held by the Honourable Supreme Court in the judgment reported in
(2002)3 SCC 98, in the case of J.J.Lal Pvt. Ltd and others vs. M.R.Murali and
another, a mere denial of the title of the landlord is not enough; such denial
has to be “not bona-fide” and the Honourable Supreme Court has further held as
follows:-
“Not bona-fide” would mean absence of good faith or non-genuineness of the
tenant’s plea. If denial of title by the tenant is an outcome of good faith or
honesty or sincerity, and is intended only to project the facts without any
intention of causing any harm to the landlord it may not be “not bona fide”.
Therefore to answer the question whether an assertion of denial of the
landlord’s title by the tenant was bona-fide or not, all the surrounding
circumstances under which the assertion was made shall have to be seen.”
19.In this case, taking into consideration of the circumstances as stated
above, in my opinion, the dispute raised by the tenant is a bona-fide one and
therefore, the Rent Controller has no jurisdiction to order eviction and ought
to have referred the matter to the landlord to establish his title before the
civil Court and without appreciating these facts, both the Courts below have
ordered eviction.
20.Hence, the orders of the Courts below are set aside and accordingly,
this civil revision petition is allowed. No costs.
er
To,
1.The Rent Controller,
Trichy.
2.The Rent Control Appellate Authority,
Trichy.